Brown v. Entertainment Merchants Assn.
131 S. Ct. 2729
| SCOTUS | 2011Background
- AB 1179 bans sale or rental of violent video games to minors and requires an “18” label.
- Act defines “violent video games” by threshold: includes killing, maiming, dismembering, or sexually assaulting an image if it appeals to minors’ deviant or morbid interest, is patently offensive, and lacks serious value for minors.
- Civil penalties up to $1,000 for violations; plaintiffs sought preenforcement relief.
- District Court enjoined enforcement; Court of Appeals affirmed; Supreme Court granted certiorari.
- Court recognizes video games as protected speech but scrutinizes whether the statute passes strict scrutiny and is narrowly tailored.
- Dissent by Justices Thomas and Breyer would have upheld or differently analyzed the statute; concurrence by Alito emphasizes vagueness concerns and limits of Stevens precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AB 1179 regulating violent video games to minors is permissible First Amendment regulation | Video Software Dealers argues content-based restriction violates First Amendment | California contends parental protection and youth welfare justify restriction | No; statute fails strict scrutiny and is unconstitutional on its face |
| Whether the statute’s threshold and terms are vagueness-problematic | Plaintiffs contend threshold terms lack precision | State argues Miller/Ginsberg framework provides notice | Unconstitutional for lack of clear notice and overbreadth |
| Whether the Act is underinclusive/overinclusive as a tool for parental authority | Act is underinclusive (excludes other media) and overinclusive (restricts youths regardless of parent) | State uses parental authority rationale and ESRB framework | Struck down due to underinclusiveness and overbreadth |
| Whether the Court should defer to legislative findings on harms from violent games | Legislature’s findings are sufficient to support regulation | Court should not defer; evidence insufficient to meet strict scrutiny | Court rejected deference; evidence insufficient for strict scrutiny |
Key Cases Cited
- Ginsberg v. New York, 390 U.S. 629 (U.S. 1968) (upheld state authority to restrict minor access to certain materials; abuse of obscenity standard for minors)
- Miller v. California, 413 U.S. 15 (U.S. 1973) (set out obscenity threshold for hard-core sexual content; community standards)
- Erznoznik v. Jacksonville, 422 U.S. 205 (U.S. 1975) (struck down blanket restrictions on minors’ access to depictions of violence/sex; parens patriae limits)
- Ashcroft v. ACLU, 535 U.S. 564 (U.S. 2002) (stated general rule against content-based restrictions with narrow exceptions)
- Winters v. New York, 333 U.S. 507 (U.S. 1948) (held violence not obscene; politics/arts context matters for obscenity)
- United States v. Stevens, 559 U.S. 460 (U.S. 2010) (rejected broad, legislated creation of unprotected speech categories; cautioned against expansion beyond tradition)
- R.A.V. v. St. Paul, 505 U.S. 377 (U.S. 1992) (content-based restrictions must be narrowly tailored to specific harms)